Thursday, June 08, 2017

Even where irreparable harm is "logical" you still need more than assertions

Previously, the court enjoined defendants from using the
service mark RAMS PHARMACY in Lansdale, Pennsylvania, because it was likely to cause
confusion with the registered service mark RANN PHARMACY, which was used on a
pharmacy approximately six miles away, in Harleysville, Pennsylvania. Defendants
responded with a name change to RAMSRX PHARMACY. Rann sued again and moved for
a preliminary injunction, which the court this time denied.

Rann Pharmacy claimed that between December 22, 2016, and
January 31, 2017, eight prescriptions meant for four different patients of
RamsRX Pharmacy were mistakenly sent to Rann Pharmacy. The allegedly erroneous
prescriptions were all sent electronically from health care providers. Defendants
denied that any of the allegedly erroneous prescriptions were actually sent
erroneously, and asserted that all four patients chose to use Rann Pharmacy as
new patients. They supported their allegations with two patient affidavits and
a prescriber letter, as well as records showing that the doctors in question
had previously sent prescriptions to RamsRX Pharmacy, indicating that they had
previously been able to distinguish between the two.

Although the presumption of irreparable injury was gone in the
Third Circuit, its logic “can, and does, inform” how the court exercises its
equitable discretion: an owner’s loss of control over her mark creates the
potential for damage to the product or brand’s reputation, a harm that is
difficult to quantify. These damages “include loss of control of reputation,
loss of trade, and loss of good will.” “Potential damage to reputation”
constitutes “irreparable injury for the purpose of granting a preliminary
injunction in a trademark case,” “so long as the plaintiff makes a clear
showing” of the damage.

However, Rann simply argued that its “loss of control of
reputation, loss of reputation, loss of trade, and loss of goodwill—as
demonstrated by the actual confusion that has taken place—demonstrates
irreparable harm.” “But this rote recitation of the types of irreparable harm
often suffered in trademark infringement lawsuits” wasn’t the requisite “ ‘clear showing’ ”
of actual, or even potential, damage. Nor did the allegations of actual
confusion. There could be no preliminary injunction without satisfying the
“threshold” factor of irreparable harm.

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